DOCSLIB.ORG

Ripeness and the Constitution Gene R

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Ripeness and the Constitution Gene R University of North Carolina School of Law Carolina Law Scholarship Repository Faculty Publications Faculty Scholarship 1987 Ripeness and the Constitution Gene R. Nichol Jr. University of North Carolina School of Law, [email protected] Follow this and additional works at: http://scholarship.law.unc.edu/faculty_publications Part of the Law Commons Publication: University of Chicago Law Review This Article is brought to you for free and open access by the Faculty Scholarship at Carolina Law Scholarship Repository. It has been accepted for inclusion in Faculty Publications by an authorized administrator of Carolina Law Scholarship Repository. For more information, please contact [email protected]. Ripeness and the Constitution Gene R. Nichol, Jr.t In a decade and a half of decision making, the record of the Burger Court proved, in many ways, a surprising one. Neither the conservative monolith suggested by its early "Nixon Court" label, nor the enthusiastic heir of its predecessor's egalitarian agenda, the Court constructed a mixed legacy of activism and restraint.1 Al- though the Court's overriding approach to constitutional problems has proven difficult to characterize, recurrent themes are clearly ascertainable.' This article will touch on one particular, perhaps distinctive, legacy of the Burger Court: the constitutionalization of 4 the law of federal justiciability. For decades prior to the 1970s, principles of jus- ticiability-standing, mootness, ripeness, political questions, and t Cutler Professor of Constitutional Law and Director, Institute of Bill of Rights Law, Marshall-Wythe School of Law, College of William and Mary. I received particularly helpful comments on earlier drafts of this essay from Martin Redish, Erwin Chemerinsky, and William Marshall. This paper was delivered at a faculty forum at the Northwestern University School of Law in the spring of 1986. Remarks re- ceived on that occasion contributed substantially to subsequent drafts. I would also like to thank Andrea Caruso for research and editing assistance. Millie Arthur helped make the manuscript more comprehensible. See Gene R. Nichol, Jr., An Activism of Ambivalence, 98 Harv. L. Rev. 315 (1984) (reviewing Victor Blasi, The Burger Court: The Counterrevolution That Wasn't (1983)); Norman Dorsen, The United States Supreme Court: Trends and Prospects, 21 Harv. Civ. Rts.-Civ. Lib. L. Rev. 1 (1986). 2 See Blasi, The Burger Court at 198-217 (cited in note 1). I See generally Nichol, 98 Harv. L. Rev. at 319-22 (cited in note 1); Blasi, The Burger Court (cited in note 1). ' Article III, § 2 of the United States Constitution states in part: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made under their Authority; ... to Controversies between two or more states." These phrases have been interpreted to encompass the "case or contro- versy" requirement of article III. To limit repetition, I have used the terms "case or contro- versy" and "article III" interchangeably. There is, of course, more to article III than the case or controversy requirement. The provision sets forth the "arising under" jurisdiction, the constitutional diversity jurisdiction, and so on. In this essay, however, I consider only the case or controversy component of article III. Throughout this article, I use the term "jurisdiction" in a limited sense. This essay addresses the constitutional and quasi-constitutional limitations on the power of the federal courts found in article III. Accordingly, "jurisdiction" here refers to limits on federal power that relate to the case or controversy requirement, rather than other jurisdictional barriers such as subject matter jurisdiction and personal jurisdiction. The University of Chicago Law Review [54:153 the like--inhabited a hazy middle ground between prudential con- cern and constitutional mandate. If traditional limits on the exer- cise of judicial power operated restrictively, their claimed ties to the Constitution were at best indistinct and not fully articulated. The Warren Court, in response to the fused justiciability doctrines it encountered, launched an energetic, if ultimately imperfect, at- tempt both to segregate and to liberalize the various strands of ju- risdictional analysis.7 The resulting expansion of judicial purview caused the Burger Court immediate concern.8 The reaction of the justices over the course of the past decade has been, if not consistent,' at least di- rected. The Court has fortified the barriers of standing, mootness, and ripeness faced by federal litigants.10 Indeed, the Burger Court has suggested quite pointedly that these justiciability doctrines are rooted in, and demanded by, the Constitution itself-specifically, the "case or controversy" requirement of article III." By limiting intervention to the protection of concrete, particularized, continu- 8 For examples of other principles the Supreme Court has used in denying federal ju- risdiction, see United States v. Johnson, 319 U.S. 302, 305 (1943) (feigned or collusive cases); Henry v. Mississippi, 379 U.S. 443, 446 (1965) (adequate and independent state ground); Moore v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 47 (1971) (no real issue between parties). a Consider, for example, the constitutional status of Frothingham v. Mellon, 262 U.S. 447, 486-89 (1923) (dismissing taxpayer challenge to allegedly illegal appropriation on ground that allowing such suits would encroach upon the legislative power). See, e.g., Flast v. Cohen, 392 U.S. 83, 91-106 (1968) (Frothinghamdoes not bar tax- payer suits involving establishment clause challenges to public expenditures); Association of Data Processing Service v. Camp, 397 U.S. 150, 156-58 (1970) (enlarging class of persons with standing to challenge administrative rulings). 8 See the Chief Justice's opinion in Laird v. Tatum, 408 U.S. 1, 15 (1972), reversing the court of appeals's finding of jurisdiction on the ground that the litigant's theory of standing would make the federal courts "virtually continuing monitors of the wisdom and soundness of Executive action." 9 Two notable exceptions-granting liberal access-are Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 68-82 (1978); and Watt v. Energy Action Educational Foundation 454 U.S. 151, 160-62 (1981). '0 See, e.g., Warth v. Seldin, 422 U.S. 490, 498-502 (1975) (standing requires, among other things, distinct and palpable injury); United States v. Richardson, 418 U.S. 166, 171- 80 (1974) (denying taxpayer standing to challenge failure to publish CIA budget); DeFunis v Odegaard, 416 U.S. 312, 316-20 (1974) (law student's challenge to affirmative action program ruled moot); Williamson County Regional Planning Comm. v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108 (1985) (restrictive ripeness ruling). 11 The Burger Court clearly viewed standing as a doctrine of constitutional stature. See Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 39, 44-46 (1976) ("EKWRO"); Warth, 422 U.S. at 502-08. The same is true of the mootness doctrine, see DeFunis, 416 U.S. at 316-20, and the ripeness doctrine, see, e.g., Babbitt v. Farm Workers, 442 U.S. 289, 297 (1979). See also notes 64-67 and accompanying text below. 1987] Ripeness and the Constitution ing injuries, 12 article III assertedly restrains federal courts from moving beyond the scope of the "judicial Power." 13 Article III re- quirements have been designed, as a group, to ensure the "proper-and properly limited-role" 4 of the unelected federal ju- diciary in our democratic system of government. This essay will focus on one aspect of the Burger Court's arti- cle III legacy: the ripeness doctrine. The subject of little academic comment, at least compared to other components of justiciability,"5 the ripeness analysis employed by modern federal courts has met with consistent approval. 8 However, the Burger Court's decision to constitutionalize ripeness poses special problems for the clarity and workability of the doctrine. It also bodes poorly for the com- prehensibility of the case or controversy requirement of article III. Aspects of the ripeness doctrine are anomalous for a require- ment rooted in the Constitution. The demands of the principle vary greatly according to the dictates and posture of the claim on the merits. In operation, therefore, the ripeness requirement often is indistinguishable from actionability analysis. Other cases use this requirement to ensure that judicial decision making is carried on with the requisite factual foundation, or under a time frame that avoids premature interference with the regulatory actions of other government bodies. In short, except for those instances in which ripeness analysis is employed to eschew advisory opin- ions-a task performed more directly by the standing require- ment-the doctrine serves goals that the Court has typically char- acterized as prudential rather than constitutional. It aims to fine- tune the decision-making process of the federal courts and to mea- sure the demands of substantive constitutional principle. These tasks are essential. They are not best performed, however, by an 12 EKWRO, 426 U.S. at 39, 44-46; Warth, 422 U.S. at 502-08; DeFunis, 416 U.S. at 316- 20. 13 Article III provides, in part, that the "judicial Power" extends to the determination of various "Cases" and "Controversies." 1 Warth, 422 U.S. at 498. 15 The literature on standing is voluminous. See, for example, the authorities listed in Gene R. Nichol, Jr., Rethinking Standing, 72 Cal. L. Rev. 68, 68 n.3 (1984). The mootness doctrine has received attention as well. See, e.g., Don B. Kates, Jr. and William T. Barker, Mootness in Judicial Proceedings: Toward a Coherent Theory, 62 Cal. L. Rev. 1385 (1974); Comment, A Search for Principles of Mootness in the Federal Courts, 54 Tex. L. Rev. 1289 (1976). 10 See, e.g., Kenneth Culp Davis, 4 Administrative Law Treatise § 25:2 at 351 (2d ed.
Load more

Recommended publications
  • Abstention and Primary Jurisdiction: Two Chips Off the Same Block?
    Cornell Law Review Volume 60 Article 3 Issue 1 November 1974 Abstention and Primary Jurisdiction Two Chips Off the aS me Block-a Comparative Analysis Sidney A. Shapiro Follow this and additional works at: http://scholarship.law.cornell.edu/clr Part of the Law Commons Recommended Citation Sidney A. Shapiro, Abstention and Primary Jurisdiction Two Chips Off ht e Same Block-a Comparative Analysis, 60 Cornell L. Rev. 75 (1974) Available at: http://scholarship.law.cornell.edu/clr/vol60/iss1/3 This Article is brought to you for free and open access by the Journals at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Law Review by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. ABSTENTION AND PRIMARY JURISDIC- TION: TWO CHIPS OFF THE SAME BLOCK?-A COMPARATIVE ANALYSIS* Sidney A. Shapirot I INTRODUCTION A plaintiff who properly qualifies for federal jurisdiction may not always receive a hearing in federal court. Although the right of the plaintiff to be in federal court is to be respected,1 other concerns of administering justice sometimes result in the federal courts sending the plaintiff to litigate his claims elsewhere. Two of the most frequently espoused reasons for sending plaintiffs to another decision-maker are the doctrines of abstention and pri- mary jurisdiction.2 * The views herein expressed are those of the author and do not necessarily reflect the views of the Federal Trade Commission. t Member of the Pennsylvania Bar. Staff Attorney for the Federal Trade Commission.
    [Show full text]
  • A Functional Theory of Congressional Standing
    Michigan Law Review Volume 114 Issue 3 2015 A Functional Theory of Congressional Standing Jonathan Remy Nash Emory University School of Law Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Constitutional Law Commons, Courts Commons, and the President/Executive Department Commons Recommended Citation Jonathan R. Nash, A Functional Theory of Congressional Standing, 114 MICH. L. REV. 339 (2015). Available at: https://repository.law.umich.edu/mlr/vol114/iss3/1 This Article is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. A FUNCTIONAL THEORY OF CONGRESSIONAL STANDING Jonathan Remy Nash* The Supreme Court has offered scarce and inconsistent guidance on congres- sional standing—that is, when houses of Congress or members of Congress have Article III standing. The Court’s most recent foray into congressional standing has prompted lower courts to infuse analysis with separation-of- powers concerns in order to erect a high standard for congressional standing. It has also invited the Department of Justice to argue that Congress lacks stand- ing to enforce subpoenas against executive branch actors. Injury to congressional litigants should be defined by reference to Congress’s constitutional functions. Those functions include gathering
    [Show full text]
  • Abstention and the Constitutional Limits of the Judicial Power of the United States Calvin R
    University of California, Hastings College of the Law UC Hastings Scholarship Repository Faculty Scholarship 1991 Abstention and the Constitutional Limits of the Judicial Power of the United States Calvin R. Massey UC Hastings College of the Law, [email protected] Follow this and additional works at: http://repository.uchastings.edu/faculty_scholarship Recommended Citation Calvin R. Massey, Abstention and the Constitutional Limits of the Judicial Power of the United States, 1991 Brigham Young University Law Review 811 (1991). Available at: http://repository.uchastings.edu/faculty_scholarship/1128 This Article is brought to you for free and open access by UC Hastings Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Abstention and the Constitutional Limits of the Judicial Power of the United States Calvin R. Massey* I. INTRODUCTION The federal courts have by now firmly established a variety of doctrines by which they decline to exercise jurisdiction vested in them by Congress. The constitutional validity of these "ab- stention" doctrines has been challenged in recent years by Pro- fessor Martin Redish, who contends that "[j]udge-made absten- tion constitutes judicial lawmaking of the most sweeping nature."1 He characterizes the abstention doctrines "as a judicial usurpation of legislative authority, in violation of the principle of separation of powers."'2 To Professor Redish, judicial con- struction of "a jurisdictional statute that somehow vests a power in the federal courts to adjudicate the relevant claims without a corresponding duty to do so is unacceptable." 3 Redish's intellec- tual cohort, Professor Donald Doernberg, establishes the same point by invoking more directly the familiar admonition of Chief Justice Marshall in Cohens v.
    [Show full text]
  • Abstention by Federal Courts in Suits Challenging State Administrative Decisions: the Scope of the Burford Doctrine
    Abstention by Federal Courts in Suits Challenging State Administrative Decisions: The Scope of the Burford Doctrine Since the early 1940s, the Supreme Court has developed sev- eral doctrines under which a federal court may abstain from exer- cising its jurisdiction, leaving the parties to proceed in state court.' The abstention doctrines thus provide judicial exceptions to the federal jurisdictional statutes in order to prevent federal courts from intruding unnecessarily into matters of importance to the states.2 The "administrative abstention" doctrine, created by the Supreme Court in Burford v. Sun Oil Co.,' allows federal courts to abstain from reviewing certain decisions of state administrative agencies or from otherwise assuming the functions of state courts in the development and implementation of a state's public policies. Despite thirty-six years of case law, the contours of Burford ab- stention remain unclear. This comment examines the rationale and development of the Burford doctrine and suggests ways in which that doctrine should I Three major categories of abstention are Burford abstention, on which this comment focuses; Pullman abstention, discussed in text and notes at notes 11-16, 111-112, 121-122 infra; and Thibodaux abstention, discussed in note 43 and text and notes at notes 113, 121- 122 infra. Another important form of abstention, not discussed in this comment, is the doctrine of equitable restraint in cases seeking injunctions against criminal prosecution for violations of allegedly unconstitutional state laws. See Younger v. Harris, 401 U.S. 37 (1971); Dombrowski v. Pfister, 380 U.S. 479 (1965); Douglas v. City of Jeannette, 319 U.S.
    [Show full text]
  • Milford Power Co., LLC V. Alstom Power, Inc
    ****************************************************** The ``officially released'' date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the ``officially released'' date appearing in the opinion. In no event will any such motions be accepted before the ``officially released'' date. All opinions are subject to modification and technical correction prior to official publication in the Connecti- cut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Con- necticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be repro- duced and distributed without the express written per- mission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** MILFORD POWER COMPANY, LLC v. ALSTOM POWER, INC., ET AL. (SC 16841) Borden, Norcott, Katz, Palmer and Zarella, Js. Argued March 19Ðofficially released May 20, 2003 Louis R. Pepe, with whom were Richard F. Wareing and, on the brief, Ben A. Solnit, for the appellants (defendants). Stuart D. Rosen, with whom, on the brief, was Ann M.
    [Show full text]
  • The Political Question Doctrine: Justiciability and the Separation of Powers
    The Political Question Doctrine: Justiciability and the Separation of Powers Jared P. Cole Legislative Attorney December 23, 2014 Congressional Research Service 7-5700 www.crs.gov R43834 The Political Question Doctrine: Justiciability and the Separation of Powers Summary Article III of the Constitution restricts the jurisdiction of federal courts to deciding actual “Cases” and “Controversies.” The Supreme Court has articulated several “justiciability” doctrines emanating from Article III that restrict when federal courts will adjudicate disputes. One justiciability concept is the political question doctrine, according to which federal courts will not adjudicate certain controversies because their resolution is more proper within the political branches. Because of the potential implications for the separation of powers when courts decline to adjudicate certain issues, application of the political question doctrine has sparked controversy. Because there is no precise test for when a court should find a political question, however, understanding exactly when the doctrine applies can be difficult. The doctrine’s origins can be traced to Chief Justice Marshall’s opinion in Marbury v. Madison; but its modern application stems from Baker v. Carr, which provides six independent factors that can present political questions. These factors encompass both constitutional and prudential considerations, but the Court has not clearly explained how they are to be applied. Further, commentators have disagreed about the doctrine’s foundation: some see political questions as limited to constitutional grants of authority to a coordinate branch of government, while others see the doctrine as a tool for courts to avoid adjudicating an issue best resolved outside of the judicial branch. Supreme Court case law after Baker fails to resolve the matter.
    [Show full text]
  • Congress' Encroachment on the President's Power in Indian Law
    Seattle Journal for Social Justice Volume 11 Issue 3 Article 13 11-2013 Congress' Encroachment on the President's Power in Indian Law and its Effect on Executive-Order Reservations Follow this and additional works at: https://digitalcommons.law.seattleu.edu/sjsj Mark Par R.t of Car theter Administr JD, PhDativ e Law Commons, Agriculture Law Commons, Arts and Humanities Commons, Banking and Finance Law Commons, Civil Rights and Discrimination Commons, Commercial Law Commons, Comparative and Foreign Law Commons, Constitutional Law Commons, Consumer Protection Law Commons, Criminal Law Commons, Criminal Procedure Commons, Disability and Equity in Education Commons, Disability Law Commons, Educational Leadership Commons, Educational Methods Commons, Energy and Utilities Law Commons, Family Law Commons, Fourteenth Amendment Commons, Health Law and Policy Commons, Housing Law Commons, Human Rights Law Commons, Immigration Law Commons, Indian and Aboriginal Law Commons, Insurance Law Commons, Intellectual Property Law Commons, International Trade Law Commons, Juvenile Law Commons, Labor and Employment Law Commons, Land Use Law Commons, Law and Gender Commons, Law and Psychology Commons, Legal Ethics and Professional Responsibility Commons, Legal History Commons, Legal Remedies Commons, Legislation Commons, Marketing Law Commons, National Security Law Commons, Natural Resources Law Commons, Other Education Commons, Other Law Commons, Privacy Law Commons, Property Law and Real Estate Commons, Secured Transactions Commons, Securities Law Commons, Sexuality and the Law Commons, Social and Behavioral Sciences Commons, Social and Philosophical Foundations of Education Commons, Social Welfare Law Commons, Transnational Law Commons, and the Water Law Commons Recommended Citation Carter, Mark R. JD, PhD (2013) "Congress' Encroachment on the President's Power in Indian Law and its Effect on Executive-Order Reservations," Seattle Journal for Social Justice: Vol.
    [Show full text]
  • United States District Court Northern District of Alabama Northeastern Division
    Case 3:13-cv-00093-CLS Document 21 Filed 05/21/13 Page 1 of 12 FILED 2013 May-21 PM 04:37 U.S. DISTRICT COURT N.D. OF ALABAMA UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA NORTHEASTERN DIVISION TIFFIN MOTORHOMES, INC., ) ) Plaintiff, ) ) vs. ) Civil Action No. CV-13-S-93-NE ) NATIONAL INTERSTATE, et al., ) ) Defendants. ) MEMORANDUM OPINION This action raises the question of the power of an Article III court to adjudicate a case removed from state court. The action was commenced in the Circuit Court of Franklin County, Alabama. The complaint sought a judgment under the Alabama Declaratory Judgment Act1 establishing the liability (if any) of plaintiff, Tiffin Motorhomes, Inc., to defendants, G.A. Rentals, LLC and National Interstate, for the destruction by fire of a motorhome manufactured by plaintiff, owned by G.A. Rentals, and insured by National Interstate.2 The case was removed to this court by National Interstate on the basis of the parties’ diversity of citizenship. See 28 U.S.C. §1332(a)(1).3 Plaintiff moved to remand, but argued only that National Interstate had 1 See Ala. Code § 6-6-220 et seq. (1975) (2005 Replacement Vol.). 2 Doc. no. 1-1 (Ex. A.), at ECF 2-3 (Complaint). 3 Doc. no. 1 (Notice of Removal). To date, plaintiff has not served G.A. Rentals. Accordingly, the consent of that party to removal was not necessary. Case 3:13-cv-00093-CLS Document 21 Filed 05/21/13 Page 2 of 12 not met its burden of showing that the amount in controversy exceeded $75,000, exclusive of interest and costs.4 That motion was denied.5 The action now is before the court on National Interstate’s motion for judgment on the pleadings.6 National Interstate first argues that the court should exercise its discretion to refuse to entertain plaintiff’s request for entry of a declaratory relief.
    [Show full text]
  • Is the Political Question Doctrine Jurisdictional Or Prudential? Ron Park
    UC Irvine Law Review Volume 6 Article 9 Issue 2 The New Legal Realism at Ten Years 6-2016 Is the Political Question Doctrine Jurisdictional or Prudential? Ron Park Follow this and additional works at: https://scholarship.law.uci.edu/ucilr Recommended Citation Ron Park, Is the Political Question Doctrine Jurisdictional or Prudential?, 6 U.C. Irvine L. Rev. 255 (2016). Available at: https://scholarship.law.uci.edu/ucilr/vol6/iss2/9 This Note is brought to you for free and open access by UCI Law Scholarly Commons. It has been accepted for inclusion in UC Irvine Law Review by an authorized editor of UCI Law Scholarly Commons. Park FINAL [4.6.17] (Do Not Delete) 4/14/2017 5:44 PM Is the Political Question Doctrine Jurisdictional or Prudential? Ron Park* In Corrie v. Caterpillar, Inc., the family members of protestors killed or injured by bulldozers driven by the Israeli Defense Forces sued the manufacturer of the bulldozers in federal district court. The Ninth Circuit affirmed the dismissal of the lawsuit after holding the issues nonjusticiable under the political question doctrine. In doing so, the Ninth Circuit held that the political question doctrine was jurisdictional. As of this moment, only the Ninth Circuit has explicitly answered the question of whether the political question doctrine is jurisdictional or prudential. The Supreme Court has not answered that question and no other Circuit Court of Appeals has done so either. This Note attempts to answer that question by making the factors articulated in the Supreme Court’s key opinion on the political question doctrine, Baker v.
    [Show full text]
  • Ripeness and Joinder
    RIPENESS AND JOINDER TARA L. SOHLMAN and JOANNA M. TOLLENAERE Cooper & Scully, P.C. 900 Jackson Street, Suite 100 Dallas, TX 75202 Telephone: 214-712-9501 Telecopy: 214-712-9540 Email: [email protected] [email protected] 18th ANNUAL COVERAGE AND BAD FAITH SYMPOSIUM April 1, 2011 City Place Dallas, Texas D/800672.1 RIPENESS AND JOINDER TABLE OF CONTENTS PAGE A. RIPENESS........................................................................................................................................ 1 1. Analysis of Ripeness under Texas Law ........................................................................................... 1 2. Analysis of Ripeness under Federal Law......................................................................................... 1 3. Declaratory Judgments: A Potentially Gray Area............................................................................ 2 B. JOINDER......................................................................................................................................... 5 1. Proper Parties under Texas Law ...................................................................................................... 5 2. Proper Parties under Federal Law.................................................................................................... 5 3. Improper Joinder.............................................................................................................................. 7 a. The Browning Case.........................................................................................................................
    [Show full text]
  • IN the SUPREME COURT of the STATE of KANSAS Nos. 113,531
    IN THE SUPREME COURT OF THE STATE OF KANSAS Nos. 113,531 113,532 STATE OF KANSAS, Appellee, v. TONY R. ROAT, Appellant. SYLLABUS BY THE COURT 1. A case is moot when a court determines it is clearly and convincingly shown that the actual controversy has ended, that the only judgment that could be entered would be ineffectual for any purpose, and that it would not have an impact on any of the parties' rights. 2. The mootness doctrine is based on and gives effect to prudential considerations, such as conservation of judicial resources. 3. The determination of whether a case is moot is subject to de novo review on appeal. 1 4. Before dismissing cases as moot, courts must exercise caution and explore with due consideration the wide variety of interests a party asserts. 5. The party asserting mootness generally bears the initial burden of establishing that a case is moot in the first instance. 6. In an appeal solely challenging a sentence, the party asserting mootness may establish a prima facie showing of mootness by demonstrating that the defendant has fully completed the terms and conditions of his or her sentence. 7. Upon a prima facie showing of mootness, the burden shifts to the party opposing the mootness challenge to show the existence of a substantial interest that would be impaired by dismissal or that an exception to the mootness doctrine applies. 8. The prospect of a later suit for damages may create a sufficient interest in a case pending before an appellate court to allow the case to survive a mootness challenge.
    [Show full text]
  • Frankfurter, Abstention Doctrine, and the Development of Modern Federalism: a History and Three Futures Lael Weinberger†
    ARTICLE Frankfurter, Abstention Doctrine, and the Development of Modern Federalism: A History and Three Futures Lael Weinberger† In its first century and a half, the Supreme Court never used the term “feder- alism” in its opinions. The Court had talked about federal-state relations before, but the concept had gone unlabeled. That changed in 1939. Something new was hap- pening, thanks in large part to Justice Felix Frankfurter. Just a month after joining the Court, Frankfurter authored the Court’s first opinion using the term “federal- ism.” Frankfurter introduced federalism as a key concept for analyzing the relation- ship between state courts and federal courts. Before long, Frankfurter would rely on federalism to fashion an original and enduring doctrine of judicial federalism: ab- stention, which requires federal courts to sometimes refrain from hearing cases that are within their jurisdiction. This Article provides a historical study of Frankfurter’s contribution to the modern law of judicial federalism. It documents Frankfurter’s theory of federalism in his judicial opinions with a focus on the abstention cases. It also shows how the abstention cases and their concept of federalism were rooted in Frankfurter’s Pro- gressive politics. They were a reaction to what he perceived as the federal courts’ anti-regulatory and anti-labor attitudes. The history—relevant today as the political discussion around the courts again echoes the Progressive Era—sets the stage for considering the future of abstention. I suggest three possibilities. The first, an originalist future, would more or less main- tain the contemporary Supreme Court’s status quo on abstention, somewhat more modest than what Frankfurter envisioned: a cautious use of abstention in a rela- tively small number of equitable cases.
    [Show full text]